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Monday, November 25, 2013

Last week in San Diego, California, Homeland Security Investigations (HSI) of Immigration and Customs Enforcement (ICE) seized nine national and royal seals originating from the Korean Empire and the Joseon Dynasty. They are described in an ICE press statement as "invaluable to South Korea." But the legal authority justifying the seals' seizure remains unclear, requiring further explanation by ICE.

ICE reports, "The cultural artifacts were turned over to HSI special agents by the family of a deceased Marine lieutenant, who had served in the Korean War. The lieutenant had found the seals in 1950 in a ditch near the Deoksugung Palace, which had just been ransacked by Chinese and North Korean soldiers."

ICE says that the seals were exported illegally to the United States. But an illegal export, by itself, would not be grounds to seize the seals. ICE mildly hints that this export may have triggered a violation of American law, but it is conceded that the agency does not explicitly cite the illegal export as a basis to seize the seals.

Korean seals seized by ICE in San Diego.

ICE states more directly that the "seals were seized pursuant to [an] abandonment of property form ...."

Abandonment, which is the relinquishing of legal rights to property, is justification for a seizure because it is a renunciation of property interests. Abandonment permits another party like the federal government to assume those property interests (i.e. possession or title) provided there is lawful authority.

Abandonment is a persuasive legal justification for seizing the seals. So what remains unclear is ICE's additional explanation justifying the seizure, what the agency claims is a "violation of the Cultural Property Implementation Act." That is because the CPIA would not seem to have any legal authority in this case.

ICE states, "On Feb. 14, 1983, South Korea became a signature country to the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property."

South Korea may be a signatory to the 1970 UNESCO Convention, but that nation has no memorandum of understanding (also known as a bilateral agreement) with the U.S. The CPIA is the law that implements the 1970 UNESCO Convention in the U.S., and an MoU authorized by the CPIA is necessary before America can institute import restrictions to seize jeopardized cultural artifacts crossing into the U.S. There are no import restrictions to date. As a result, there appears to be no authority for ICE to seize the Korean seals under the 1970 UNESCO Convention or the CPIA.Unless the seals were inventoried in and stolen from a museum during or after 1983 (and they were not according to the information supplied), South Korea's adoption of the 1970 UNESCO Convention would bear no relevance on whether federal agents could seize the seals under authority of the CPIA.

In its press statement, ICE goes on to recite that "South Korea’s applicable cultural patrimony laws are the Korean National Property Act, enacted April 8, 1950 and the Korean National Property Act-Enforcement Decree, enacted June 10, 1950. According to the Korean National Property Act, the aforementioned seals fall under the category of Korean national property, which is illegal to transfer or export."

While an assessment of these statutes would be relevant to whether U.S. law recognizes South Korea's rightful ownership of the objects, the foreign statutes' export regulations would be of no interest to American law since U.S. law only enforces American import restrictions, not foreign export controls.

In fact, ICE does not appear to base its seizure on the rationale that the seals were owned by South Korea and stolen from that country in violation of its patrimony laws. If the seals were characterized as stolen, they would likely have been taken by ICE under 19 USC § 1595a's "contrary to law" provision that allows federal authorities to seize stolen property brought into the U.S. and to return the property to the legal owner.

Perhaps ICE is using Korea's patrimony law to support a claim that the now "abandoned" seals belong to South Korea. We do not know for sure.

A clearer legal explanation of what happened in the current South Korean case would help attorneys, collectors, auction houses, museums, preservationists, and other stakeholders better understand the federal government's cultural property enforcement actions.Photo credit: ICE

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Monday, November 18, 2013

It is no surprise that New York's Court of Appeals decided last week that a "spoils of war" legal theory could not be upheld. That state's highest court ruled that pillaging during World War II does not invest a possessor of stolen cultural heritage with title.

In the case of In the Matter of Riven Flamenbaum, Flamenbaum's attorney offered astonishing oral arguments to the Court of Appeals affirming the right of pillage, justifying the legal right of Soviet soldiers to steal Nazi looted art, and conceding that the client may have been a thief.

The case involved the Vorderasiatisches Museum in Berlin, which sought recovery of a 3,000 year old Assyrian gold tablet found by German archaeologists from the Ishtar temple in Ashur, Iraq and excavated before World War I. The tablet had been in the museum's collection since 1926 but went missing in 1945. The museum remained closed during World War II, placing the Ashur objects in storage. The tablet later appeared in the collection of Riven Flamenbaum in New York in 2003 when it was discovered in his estate following his death.

The museum argued that Flamenbaum never could have acquired title to the tablet. Flamenbaum's estate, meanwhile, contended that the museum was time-barred from petitioning the court for return of the object because the museum took no action to find the tablet until decades later.

In its opinion issued November 14, the state appeals court held, "The 'spoils of war' theory proffered by the Estate—that the Russian government, when it invaded Germany, gained title to the Museum's property as a spoil of war, and then transferred that title to the decedent—is rejected."

The court noted that there was no proof the Russian government ever had possession of the tablet. But the justices pointedly added, "Even if there were such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force."

In reaching its decision, the justices noted that it was the official policy of the United States during World War II to forbid pillaging of cultural artifacts."

The Court of Appeals expressed some concern during oral argument about the museum's action, or lack thereof, to locate the tablet. But the court concluded in its decision:

While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent's death, that he was in possession of the tablet.
...
While the Estate argued that it had suffered prejudice due to the Museum's inaction, there is evidence that at least one family member (decedent's son) was aware that the tablet belonged to the Museum. And, although the decedent's testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Wednesday, November 13, 2013

UNESCO confronts a budgetary and political crisis following America’s automatic defunding of the U.N. agency in 2011 and UNESCO's decision last Friday stripping the United States of its voting rights.

The General Conference of the United Nations Educational Scientific
and Cultural Organization is meeting in Paris from November 5 through 20. The General Conference is UNESCO’s
legislature, which assembles every two years to set policies, approve programs, and
adopt a budget. It elects the Executive Board and appoints a Director-General
every four years.

While tensions have existed between the U.S. and UNESCO,
particularly over the last four decades, the current crisis can be traced to
October 5, 2011 when UNESCO's Executive Board granted the Palestinians full membership in the organization, a measure opposed by the U.S.Forty members of the Executive Board voted in favor, four
against, and fourteen abstained.

Photo credit: Mattox

Forty-three nations then submittedDraft
Resolution 9.1 to the General
Conference on October 29, 2011. The body passed the resolution to admit the Palestinians to UNESCO, a result that had not been achieved since such the campaign for admission first started in 1989. The final vote tally was:

·52 abstentions, including
Italy, Japan, Mexico, South Korea, and the United Kingdom; and

·21 absent including Ethiopia

Palestinians previously maintained observer
status at UNESCO, dating back to 1974. President
and Palestinian Liberation Organization chairman Mahmoud Abbas applied to
the Security Council in September 2011 for full membership in the U.N., but that action failed while the UNESCO effort succeeded.

Membership by the Palestinians in UNESCO has been viewed by many as a way to compel legal recognition
of Palestinian statehood without the benefit of bilateral talks with Israel.
That is why the U.S., which tried to restart Israeli-Palestinian peace talks after their suspension
in October 2010, protested the admissions process.Ambassador David Killion, U.S. Permanent Representative to UNESCO,told the General Conference:

The
United States has been very clear about the need for a two-state solution to
the Israeli-Palestinian conflict. But the only path to the Palestinian
state that we all seek is through direct negotiations. There are no shortcuts,
and we believe efforts such as the one we have witnessed today are
counterproductive....[W]e recognize that this action today will
complicate our ability to support UNESCO’s programs. There are other ways of
promoting the cause of the Palestinian people that would not have involved
seeking premature membership at UNESCO. We sincerely regret that the
strenuous and well-intentioned efforts of many delegations to avoid this result
fell short.

The U.S. automatically cut off its support for UNESCO programming by the terms of the Foreign Relations and Intercourse
Authorizations, codified at22 U.S.C. § 287e. In 1990 the U.S. Congress ordered that "[n]o funds ... shall be available for the United
Nations ... which accords the Palestine Liberation Organization the same
standing as member states." (Public Law 101-246). And in 1994 Congress proclaimed
that the U.S. "shall not make any voluntary or assessed contribution:
(1) to any affiliated organization of the United Nations which grants full
membership as a state to any organization or group that does not have the
internationally recognized attributes of statehood, or (2) to the United
Nations, if the United Nations grants full membership as a state in the United
Nations to any organization or group that does not have the internationally
recognized attributes of statehood, during any period in which such membership
is effective." (Public Law 103-236).

But lawmakers on Capitol Hill remained steadfast. Senator
Danial Coats (R-IN) proposed aSenate bill affirming
the defunding law and presented a warning, "The Palestinian
Authority may use this vote [of membership in UNESCO] as a precedent to pursue
membership in other United Nations affiliated organizations, contrary to the
best interests of those organizations and the Palestinians themselves."

Sen. Robert Menendez
(D-NJ) voiced similar views,urging"the State
Department to enforce U.S. law and immediately cut off all funding to UNESCO
and any other international organization that recognizes a Palestinian
state. The Palestinian leadership is aware of U.S. law on this issue and
it is very unfortunate that it is forcing the U.S. to take such drastic steps."

Rep. Kay Granger (R-TX), Chairwoman of the influential House
State and Foreign Operations Appropriations Subcommittee actively garnered support from lawmakers
to uphold the payment suspension.

Rep. Nita Lowey (D-NY), the ranking Democrat on Granger’s committee,
took thepositionthat the "mission of every agency affiliated with the United
Nations is to foster—not thwart—conditions for peace and stability,"
concluding that UNESCO "fails that test" by "interfering with
the prospects for direct negotiations between Israel and the Palestinians..."

Joining their efforts was Chairwoman of the House Foreign Affairs Committee, Rep. Ileana
Ros-Lehtinen (R-FL), a critical voice in the discussion.

Ambassador Susan Rice, U.S.
Permanent Representative to the United Nations at that time, appeared
before the House State and Foreign Operations Appropriations
Subcommittee in March 2012 to
support refunding UNESCO.Shetoldcommittee members:

Current U.S. law
runs counter to U.S. national security interests by enabling the Palestinians
to determine whether the U.S. can continue to fund and lead effectively in key
U.N. specialized agencies that help protect Americans.
...
In the case of UNESCO, due to irresponsible Palestinian actions,
we have withheld our funding for valuable work that supports key U.S.
interests.
...
We believe our membership and participation in UNESCO is valuable
and worth supporting.

While President Obama and other White House officials continue to
press lawmakers to restore funding for UNESCO, the administration remains
hampered in its efforts by UNESCO’s adoption of resolutions focused on Israel.

The Executive Board last month, over America's objection,
supported six
resolutions criticizing
Israel and calling on that nation to cease actions reportedly affecting the
"authenticity, integrity and cultural heritage" of sacred and
archaeological sites. Arab nations, Russia, and France endorsed
the resolutions, andThe
Jordan Timesreportedthat the Jordanian king's actions
to move the resolutions forward were "decisive."

In April of this year, the U.S. prevented these
resolutions—which numbered five at that time—from being offered to the
Executive Board when Israel agreed to terms that would have
allowed UNESCO inspectors to assess the Old City of Jerusalem as well as an ascent to
the Temple Mount, or Haram al-Sharif.

The New York Timeslearned that
the deal "was brokered in an unusual partnership between the United States
and Russia, with the help of Jordan, Brazil and the director general of UNESCO, Irina
Bokova" and that "[t]he willingness of the Palestinians to table the
resolutions was a direct result of recent visits to the Middle East by
President Obama and Secretary of State John Kerry, who secured a Palestinian
agreement not to 'initiate negative moves in international
organizations.'"

Israel, however, canceled the
inspection team's scheduled May 2013 trip, citing concerns over
"politicization," according to The
Times of Israel.

Soon thereafter,
UNESCO's World Heritage Committee (WHC), meeting in Cambodia in June,
adopted language proposed by the Jordanian
delegation to censure Israel.Decision 37 COM 7A.26declared,
in part, that the WHC "[d]eplores the continued Israeli failure to
cooperate and facilitate the implementation of the ... reactive
monitoring mission to the Old City of Jerusalem and its Walls" and
"[d|eeply deplores the persistence of Israeli archaeological excavations
and works in theOld City of
Jerusalem and on both sides of its Walls and the failure of Israel to
cease such works."

Israel's Ministry of Foreign Affairscriticizedthe
measure, calling it "a dark day for UNESCO" and saying that "the
Palestinians are exploiting their admission to UNESCO ... in order to hijack
and drag this important U.N. agency into the abyss of politicized
manipulation." The ministry concluded that "Israel will uphold its
commitments ... to ensure freedom of worship of all faiths in Jerusalem."

UNESCO then acceded to a
Palestinian request to have Bethlehem's Church of the Nativity, revered as the
birthplace of Jesus, placed on theWorld Heritage List and the List of World Heritage in Danger. Only
44 sites across the globe are on the endangered list. The church is located
in the Palestinian-administered portion of the occupied West Bank.
The U.S. objected to both listings.

That set the stage last month for
UNESCO’s passage of the six resolutions.

Explaining why the U.S. was the
only nation to object to every one of the six Executive Board resolutions, Ambassador Killion
issued a statement titledExplanation of Vote by Ambassador Killion on Middle East Resolutions Targeting Israelto say "We are very disappointed that this body, the UNESCO
Executive Board, rather than live up to its lofty goals to build peace in the
minds of men and women, once again chose to needlessly politicize these issues
before us." Killion described
how "such actions …
strike a highly discordant note, and are disheartening to us." "This is
supposed to be a place for peacebuilding," the ambassador noted. "Now we have this Board
faced with six—I repeat six—decisions directed at a single Member State.
This is truly ridiculous, and obviously counter-productive." Ambassador Killion questioned, "We ask you, are your actions today
helping to build two states, living side by side? Are we working in this body
to build trust and confidence?"

Canada’s government too expressed frustration. Minister Christian Paradisobserved that
"UNESCO was dealt
a severe blow following the decision to admit the Palestinian delegation
into the organization, which resulted in an unprecedented cash-flow
crisis. Canada rejects efforts to politicize UNESCO and believes that
UNESCO is always stronger when there is consensus."

The six resolutions adopted find their roots in an
October 2010 UNESCO Executive Boardvote that
"adopted five decisions concerning
UNESCO’s work in the occupied Palestinian and Arab Territories." The U.S. often cast the sole vote in objection to these proposals.

The 2010 resolutions
were UNESCO's response to a controversial decision in February
2010 by the Israeli government to place Rachel's Tomb in
Bethlehem and the Tomb of the Patriarchs in Hebron on a national heritage list,
a move criticized by the U.S. and one which prompted Palestinian protests. The sites' significance as well as the importance of the Old City of Jerusalem to
the three major monotheistic religions of Judaism, Islam, and Christianity are
subjects of continuing debate and contention.

The UNESCO resolutions report
stated, in part:

Jerusalem’s cultural heritage: The Board voted 34 to 1 (19 abstentions) to "reaffirm the religious
significance of the Old City of Jerusalem for Muslims, Christians and Jews." The
decision expresses "deep concern over the ongoing Israeli excavations and archaeological works on Al-Aqsa Mosque compound in the Old City of Jerusalem,
which contradicts UNESCO decisions and conventions and United Nations and
Security Council resolutions." It invites the Director-General to appoint
experts to be stationed in East Jerusalem to report on all aspects covering the
architectural, educational, cultural and demographical situation there. It also
invites the Israelis to facilitate the work of the experts in conformity with
Israel’s adherence to UNESCO decisions and conventions.

The Palestinian sites of
al-Haram al-Ibrahimi/Tomb of the Patriarchs in al-Khalil/Hebron and the
Bilal bin Rabah Mosque/Rachel’s Tomb in Bethlehem: the Board voted 44 to
one (12 abstentions) to reaffirm that the two sites are an integral part of the
occupied Palestinian Territories and that any unilateral action by the Israeli
authorities is to be considered a violation of international law, the UNESCO
Conventions and the United Nations and Security Council resolutions.

The U.S Mission to UNESCO issued
astatementof dissatisfaction, expressing
that "the United States broke with UNESCO’s long-tradition of
consensus and voted against five resolutions that unfairly singled out Israel,
and which can only serve to politicize the organization’s work." The
statement went on to say:

In the past, those items related
to the Mughrabi Ascent, Jerusalem, Gaza and educational and cultural
institutions in the Palestinian territories have always noted UNESCO’s accomplishments,
cited continuing challenges, and encouraged all parties to work together toward
a common goal, consistent with UNESCO’s mission.

During
this Executive Board, the Arab states sponsoring the five resolutions made
clear their unwillingness to negotiate, leaving one-sided, empty political
condemnations that the United States felt were unhelpful to all involved
parties. UNESCO’s expertise does not lie in accounting for the work of
other United Nations bodies, nor should it take on a political role that it was
neither conceived for, nor is within its competence.

Ambassador
David Killion voted NO on all five of the Middle East resolutions before the
Executive Board .... In voting against the UNESCO draft decision
that stated that Rachel's Tomb and the Tomb of the Patriarch's are "an
integral part of the occupied Palestinian Territories", Ambassador Killion
stated "...we cannot support this draft decision, which supposes authority
that UNESCO does not and cannot possess".

The events occurring from 2010 through today recall the on and off again tensions that mark the U.S.-UNESCO relationship.

UNESCO removed Israel from membership in 1974
because of alleged archaeological harm to Islamic sites on the Temple Mount. But Israel earned reinstatement in 1977 after the U.S. pledged to withhold
funds, which even then amounted to roughly a quarter
of UNESCO's budget.

President Ronald Reagan later removed
the U.S. from UNESCO at the end of 1984. The reasons for withdrawal
were,according
to the State Department, that "UNESCO has extraneously politicized
virtually every subject it deals with; has exhibited a hostility toward the basic
institutions of a free society, especially a free market and a free press; and
has demonstrated unrestrained budgetary expansion.''

President George W. Bush returned America to UNESCO in October
2003,explaining a year earlier, "As a symbol of our commitment to human dignity, the
United States will return to UNESCO. This organization has been reformed and
America will participate fully in its mission to advance human rights and
tolerance and learning.”

But sometime later, a 2010 UNESCO ethics officereport may have raised eyebrows about the agency's reform. The report identified specific areas
of agency abuse:

TheEthicsofficeisconcernedbythefactthatwe received manyrequestsfromUNESCOemployees
about alleged abuse of authority or harassment by their supervisors.

Therealsoappearstobeafailurebyemployeesatalllevelstotakeresponsibilityfortheir work, and an unwillingness to delegate
authority. Many people who contact the Ethics Office, are more preoccupied
in letting us know what they are not responsible for....

TheEthicsOfficehasreceivedmoreandmorecomplaintsaboutthenon-respectofprivate legal and financial obligations by UNESCO
employees, sometimes by inappropriately using their diplomatic immunity.

And just last month, UNESCO's praise for Che Guavare's writings
sparked the ire of both supporters and critics of the U.N. agency.
"The United
States Government strongly objects to the inscription of the writings of Che
Guevara in UNESCO'sMemory
of the World Register,"protestedAmbassador Killion, adding that "Che
Guevara tortured and killed countless innocent people. His writings are
antithetical to UNESCO's values and mission to promote peace in the minds of
men.... Inscribing words such as these makes a mockery of UNESCO’s Memory
of the World program...."

Cuban born Rep. Ros-Lehtinen,
who holds influence over UNESCO's funding, voiceda
strong rebukeof the decision and the agency:

UNESCO
continued its longstanding tradition of making a mockery of its own
institution…. This decision is more than an insult to the families of those
Cubans who were lined up and summarily executed by Che and his merciless
cronies but it also serves as a direct contradiction to the UNESCO ideals of
encouraging peace and universal respect for human rights.This latest
reprehensible action is a microcosm of the existing problems within UNESCO
today. There isn’t any semblance of common sense left in that body.... The
Obama Administration is wrong to continue to seek to restore funding to UNESCO..

UNESCO member nations are worried about the U.S. funding gap, and some at the November General Conference meeting have asked other wealthy governments to cover the
budget shortfall.

China, meanwhile, may try to fill the political vacuum.
In the same way that last month's federal government shutdown absented President
Obama from the Asia-Pacific Economic Cooperation conference, leaving Chinese President Xi Jinpingready and
willing to do business, the U.S.’s voting
absence from the General Conference might allow newly electedUNESCO
President Hao Ping,
Vice Minister of Education of China, to gather greater influence.

It is also possible that the continued
absence of American cash and influence could shrink UNESCO, forcing the
organization to rethink its aims and to reflect on its culture of consensus, or lack thereof.

UNESCO is already under fire by the U.K. for inefficiency and lack of transparency. That nation seeks reform. "If we are honest, as Member States we are inherently incoherent, and it is that incoherence we should really focus on for our future strategy, the U.K. told the General Conference last week. "We need more action on transparency too. Its a simple enough question, can I find out what UNESCO does, with what resources, to what effect and with which partners in my country or any other? If not why not? ... Let us be clear, this organisation is funded by our taxpayers. Their right to know what goes on here is at least as strong and valid as their right to know what goes on in government at home."

The U.S. State Department continues to hope that the
U.S. will have an impact on the organization. A statement issued
by the agency announced, "We note a loss of vote in the General Conference is not a loss of U.S.
membership. The United States intends to continue its engagement with UNESCO in
every possible way–we can attend meetings and participate in debate, and we
will maintain our seat and vote as an elected member of the Executive Board until
2015."

Congressional leaders on Capitol Hill, however, show few signs that they are
willing to write UNESCO a multi-million dollar check in time for the General
Conference’s final session next week or at any other time in the near future. So while Director-General Bokova advertises at the Paris meeting that "The world needs more UNESCO," she will need much more money and stronger political support to sell that idea.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Wednesday, November 6, 2013

An antiquities gallery
and its manager/director were charged by federal prosecutors last week for
obstructing justice. Lorin & Son, LLC and Francois Lorin were both
charged with obstruction of proceedings under 18 USC § 1512(c)(2). That
statute declares, "Whoever corruptly ... obstructs, influences, or
impedes any official proceeding, or attempts to do so" is guilty of a
crime. The maximum penalty is a fine of $500,000 for a corporation and 20
years imprisonment plus a fine of $250,000 for a person.

The criminal information
filed by the U.S. Attorney for the Southern District of Florida alleges that
Lorin and his company illegally tampered with the customs process by supplying,
through their lawyer, false information concerning the import of Chinese
artifacts.

A person or corporation
is innocent unless the prosecution proves guilt beyond a reasonable doubt.

The criminal complaint
alleges that the defendants did

frustrate the ability of
CBP [U.S. Customs and Border Protection] to implement and carry out the terms
of the Tariff Act of 1930 ... with regard to examination of
merchandise imported to the Port of Miami on or about June 4, 2011 ... by
causing their attorneys ... to submit to CBP correspondence dated June 30,
2011 and a Petition for Expedited Procedures and Early Release dated July
3, 2012, containing false and fraudulent information and phony
supporting documentation, falsely alleging provenance for items of Chinese
fine art contained in the shipment, including false information related to
items dated to the period pre-907 A.D ., in order to frustrate the
ability of CBP to accurately determine whether such items were
lawfully imported into the United States.

CBP reportedly sought to
inspect the objects to find out if they were restricted imports under the terms
of the Convention on Cultural Property Implementation Act's Memorandum of
Understanding (MoU) covering Chinese archaeological and ethnological material
in jeopardy of pillage.

The shipment number,
identified in the criminal information as EQY-0001437-3, suggests
that the defendants allegedly used or purported to use a Miami-based shipping
logistics company to import the objects. The format of the shipment number
appears consistent with the three digit alphanumeric filer code, seven digit
entry number, and one digit check typically entered on Form 7501.

The U.S. Attorney's
Office describes Lorin & Son as "a Nevada limited liability
company

registered to do
business in Florida and that conducted business from a location in Winter
Park." And a November 4 Immigration and Customs Enforcement (ICE) bulletin says that
"Lorin & Son, LLC conducted business in
Florida under the name 'Asiantiques.'"

A review of available
public records in Nevada reveals that Lorin & Son, LLC filed as a domestic
limited liability company on September 16, 2003 and that it's business license
expired on September 30, 2013. Francois Lorin and others are listed as Managing
Members. Florida corporate filings show that Asiantiques, Inc. formed on
September 29, 1988 and administratively dissolved on September 25, 2009 after
the company failed to submit an annual report. Francois Lorin is listed as a
director of the corporation, but the name Lorin & Sons does not appear in
the index of Florida's records. Asiantiques web site states that the business
has been operating since 1978.

Although the January
14, 2009 MoU between the U.S. and the People's Republic of China prohibits
archaeological materials from China entering the U.S. without permission, the
defendants in the case are not being charged with smuggling contraband items.
They are instead charged with supplying information to authorities claiming
that the Chinese artifacts seized by CPB were already in the U.S. prior to the
adoption of import restrictions.

The criminal information
alleges that the defendants "imported a shipment of approximately 488
items of merchandise from Hong Kong to the Port of Miami, in Miami-Dade County,
Florida .... The shipment included approximately 27 items of Chinese fine art
that dated to periods prior to the year A .D. 907. The shipment was interdicted
by CBP...."

ICE's bulletin adds:

invoices
accompanying the shipment indicated that the entire contents had originated in
Florida and were being returned to the United States after having been shipped
to Hong Kong for a trade show. After the items were interdicted by U.S. Customs
and Border Protection (CBP) inspectors, Francois B. Lorin and others created
false documents to justify provenance for certain items in the shipment that
were prohibited from entering the United States without such provenance.
Thereafter, Lorin & Son, LLC and Francois B. Lorin, through counsel, filed
a petition for remission with CBP and provided supporting materials, in which they
argued for release of the interdicted items by using false invoices and
providing other false information. The invoices that were submitted were
backdated, falsely claimed that items had been acquired from third-parties
before the MOU date, and otherwise falsely claimed that these documents
established “proof” that the items could be lawfully imported.

Shipping records
covering goods arriving in Miami on June 4, 2011 from Hong Kong show 362
entries on that day, but they do not describe imports bound for Asiantiques or
Lorin & Sons.

The artifacts seized by
CBP include objects from the Ancient and Imperial periods such as bronze
mirrors, weapons, and containers as well as nephrite jade bi disks.

The defendants have
waived indictment, and the federal court has set bail at $100,000 surety.

This post is researched,
written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire atculturalheritagelawyer.blogspot.com. Text
copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor
at Law, PLLC. Any unauthorized reproduction or retransmission of this post is
prohibited. CONTACT INFORMATION:www.culturalheritagelawyer.com

2015 ABA Journal Blawg 100 Honoree

2014 ABA Journal Blawg 100 Honoree

2014 Daniel Webster International Lawyer of the Year award given to Rick St. Hilaire

"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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Rick St. Hilaire is among those featured in Josh Knelman's book, Hot Art

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